ANALYSIS: EFCC’s Botched Search Of Ambode’s House: Need To Avoid Obstruction Of Justice
On Tuesday, August 20, and on Wednesday, August 21,the online and print news media in Nigeria reported that in the course of carrying out a “raid” in the Epe, Lagos State homes of former governor of Lagos State, Akinwunmi Ambode, and his Chief of Staff in the morning of Tuesday, August 20, operatives of the Economic and Financial Crimes Commission (EFCC) came under attack from irate residents of Epe, the political stronghold of the erstwhile governor. In the course of the “raid”, the media reports continued, residents of the town came out in their huge numbers in solidarity with the former governor to protest the action of the EFCC. The EFCC’s operatives who were deployed for the “raid” were initially prevented from gaining entry into Mr. Ambode’s house, disallowed from alighting from their operational bus, subjected to searches by interveners who were not the owner or residents of the house, and stalked and followed in every nooks of the house by intruders who expressed the fear that the EFCC Operatives could illicitly plant incriminating evidence in the house while conducting their search. Furthermore, the EFCC’s operatives had their search impeded by the intruders and interveners, at every turn of carrying out their work, including the video-recording of the search, and attempts to remove some documents from the house. The bus of the EFCC operatives, who were reported to have fired shots into the air, while retreating from the operation, was vandalised by the protesting residents, and they literarily had to shoot their way out of the pandemonium, as they fled and escaped from the scene.
In the immediate aftermath of the search, the EFCC issued two statements. The first statement clarified that its operatives did not “raid” Mr Ambode’s Epe Country home and his Parkview Estate Home in Ikoyi, as alleged in the media, but that the operatives, armed with requisite search warrants, visited the two houses of the Ex-Governor, who was under criminal investigation, and who upon leaving office, had lost the executive immunity conferred on him by Section 308 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, in order to carry out their legitimate duties in accordance with the rule of law. The second statement of the EFCC stated that the EFCC Operatives could not carry out the search of the Epe House of Ex-Governor Ambode, as they came under attack, compelling them to withdraw from the operation. Governor Ambode, through his well-respected media aide, also issued a statement. Ambode through the statement confirmed the search of the two houses “without incident”; and called on his supporters to be law-abiding and be calm, declaring that the EFCC had not invited him for interrogation, even though he was available.
It should be stated, that there is no shred of indication that the attack was instigated or masterminded by ex-Governor Ambode.
In addition to the press statements issued by the EFCC and ex-Governor Ambode, there was another “official press statement” which was issued on the same date the searches were carried out (or prevented from being carried out), authored, signed, and circulated by “three young lawyers in Epe”, who claimed they were “ briefed” to act for Mr Ambode. The press statement entitled “ the Attempt of the EFCC Officials led by Rotimi Oyedepo, Esq to incriminate the Ex-Governor, Mr. Akinwunmi Ambode with Foreign Currencies resisted by Young Lawyers in Epe” narrated how the lawyers “bravely and heroically” thwarted the attempt by the EFCC to plant foreign currencies that were brought in a blue bag in Mr Ambode’s house in Epe, to implicate and incriminate him, and how they prevented the EFCC operatives from taking away the minutes of meetings of the Lagos State Government Executive Council, for reason of lack of proper recording and documentation.
The alleged EFCC’s “raid” of the houses of ex-Governor Akinwunmi Ambode, the so-called solidarity protects of some Epe residents, and the young lawyers’ confession of their acts and conducts have, again, raised a number of serious issues in the enforcement of our country’s anti-corruption laws and the administration of criminal justice. We discuss these issues below.
In discussing these issues, we have no interest in treating the question of why, contemporaneously with the investigation of Mr Ambode, the EFCC is not investigating two former governors of Lagos State, who, from 1999, spent eight years in office each, and who were the predecessors of Governor Ambode, who just ended a single term of four years in office. Our discussion shall not explore the “after Ambode was not allowed a second term and denied a ministerial appointment, he is now being hounded by the EFCC” narrative. We have no facts at our disposal to allege or assert that Ambode’s investigation is politically motivated; that it is a witch hunt or an act of political persecution. In the past, the EFCC had reasons to investigate former government officials of Lagos State. For example, the ex-speaker of the Lagos State House of Assembly, Adeyemi Ikuforiji, was investigated and prosecuted for money laundering by the EFCC. In 2018, the Supreme Court of Nigeria decided that he had a case to answer in the Appeal that emanated from his discharge and acquittal by the Federal High Court before whom he was originally arraigned, tried and charged. Consequently, he will be back to court for a fresh arraignment, prosecution and trial.
The EFCC, the Attorney-General of the Federation and the Federal Government of Nigeria fairly and rightly may be asked questions on certain inconsistencies in the pursuit of their anti-corruption mandate. Why, for example, did the Office of the AGF take over the eight-year prosecution of Muhammed Danjuma Goje, only for it to thereafter dramatically withdraw same, especially about the time the race for the election of the 9th Senate President was on, a race that was characterized by horse-trading, brinkmanship and unprincipled striking of interest withdrawal deals; while the EFCC diligently saw through the successful prosecutions and convictions of Ex Governors Joshua Dariye and Jolly Nyame? Why has a blind eye been turned unrepentantly to the bribery scandal involving Governor Abdullahi Umar Ganduje of Kano State? These and other similar questions are valid when discussing the issues of standards, fairness, equality and alleged selectivity in Nigeria’s anti-corruption laws enforcement. But with these issues, important as they certainly are, we are not, in this discussion, concerned.
Part 18 (Section 143-157) of the Administration of Criminal Justice Act, 2015 provides for and govern search warrants and the manner of their execution under the Nigerian criminal procedure law. A search warrant shall be under the hand of a judge, magistrate or justice of the peace issuing it, and it may be issued and executed at any time on any day, including a Sunday or public holiday (Ss. 147 & 148 of the ACJA). Where any building or other thing or place liable to search is closed, a person residing in or being in charge of the building, thing or place shall, on demand of the police officer or other person executing the search warrant, allow him free and unhindered access to it and afford all reasonable facilities for its search; and where access into the building or place cannot be so obtained, the police officer or other person executing the search warrant may …break open any outer or inner door or window of any house or place …if after notification of his authority and purpose, and demand of admittance duly made, he cannot obtain admittance ( Ss. 149 [ 1, 2]; and Section 12 of ACJA). Except the Court or Justice of the Peace, issuing a warrant, owing to the nature of the case otherwise directs, a search shall be made in the presence of two witnesses and the person to whom the search warrant is addressed may also provide a witness within the neighbourhood ( S. 149  of ACJA). The occupant of a place searched or some person on his behalf shall be permitted to be present at the search and shall, if he so requires, receive a copy of the list of things seized there, signed or sealed by the witnesses if any ( S. 150 of ACJA). A list of all things recovered in the course of search and of the places in which they are found shall be drawn up by the person carrying out the search….and shall be signed or sealed by the person to whom the search warrant is addressed, the person executing the search warrant, the witnesses, and a witnessed copy of the list shall be delivered to the person searched (S. 153  and S. 149 of ACJA).
It must be clear from the above reproduced sections of ACJA, that the presence of the owner of a house to be searched under a search warrant at the execution of the search warrant; and the notification to the owner or occupier of a house to be searched prior to the search, are not a requirements of the law. Indeed, if such owner were to be notified ahead of the search, the purpose of the search may be defeated, for it can be imagined that any incriminating materials and evidence pertaining to the investigation in respect of which the warrant was issued might be removed.
It is also obvious that there is a well laid out statutory procedure regulating searches that are carried out pursuant to a search warrant. Thus, no law enforcement agency, including the EFCC, is permitted to conduct a search outside the purview of the law. This is so, in spite of the latitude for non-compliance that is provided by Section 14 of the Evidence Act, 2011. The Section provides that “evidence obtained improperly or in contravention of a law; or in consequence of an impropriety or of a contravention of a law, shall be admissible unless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting the evidence that has been obtained in the manner in which the evidence was obtained.” Section 15 ( a-f) of the Evidence Act, 2011 then lists the matters the court shall take into account in admitting or excluding evidence obtained improperly or in contravention of a law.
In the discharge of their lawful duties, and specifically regarding the execution of search warrants, law enforcement agents generally, and EFCC Operatives, in particular, ought not to be impeded, resisted, or combated. They should never be prevented from lawfully recovering, removing or taking away any material that is related to the subject of the investigation being conducted or any other material of interest, in the way and manner in which the Epe lawyering troika, by their own confession, had done. EFCC operatives ought not to be subjected to an attempted or actual mob action in the manner in which the Epe “pro-Ambode” solidarity protest was carried out. The bedlam and unbridled aggression exhibited against the EFCC operatives, as captured in the video footages, and as reported by the media, should embarrass every Nigerian and any Nigerian lawyer, especially soon after the filing of an indictment against seventy-seven Nigerians by the FBI in the United States, for alleged involvement in large scale internet fraud. When the houses of incumbent and ex-political officeholders and public officers are being lawfully searched, by agents of any of the anti-corruption bodies, in the course of and as a part of an investigation, a decent and responsible people should be sober. It certainly cannot be and ought not to be a time for a display of misguided solidarity. Reveling in uniform clothes at court precincts during criminal proceedings in identification with politicians undergoing prosecution for corrupt practices, staging sponsored street protests in support of politicians undergoing investigation or prosecution for corrupt practices, and storming of courtrooms by battery of lawyers in solidarity with an ethically impaired colleague undergoing prosecution may offer shameful spectacles, but nothing is as nationally disgraceful, indicative of our collective incorrigibility, and emblematic of our country’s fantastically corrupt alias, as the picture of a people coming out to attack the operatives of an anti-corruption agency, for doing its work, because a politician is involved.
To be sure, resisting or obstructing law enforcement officers, including EFCC operatives in the course of carrying out their lawful and legitimate duties is a criminal offence. Section 38 (2-a & b-) of the EFCC Establishment Act, 2004 provides that “any person who wilfully obstructs the Commission or any authorized officer of the Commission in exercise of any of the powers conferred on the Commission by this Act… commits an offence under this Act and is liable on conviction to imprisonment for a term not exceeding five (5) years or to a fine of twenty thousand (# 20,000) naira or to both such imprisonment or fine”.
Section 112 of the Criminal Law of Lagos State, 2011 provides that “any person who wilfully obstructs or resists any person lawfully charged with the execution of an order or warrant of any court is guilty of a felony and is liable to imprisonment for three (3) years.” Be it noted that a search warrant issued by a court is a “warrant of a court”. And Section 117 of the Criminal Law of Lagos State, 2011 generally provides that “any person who, in any manner obstructs or resists any public officer while engaged in the discharge or attempted discharge of the duties of his office under any Act, Law or Regulation … is guilty of a felony and is liable to imprisonment for three ( 3) years or to a fine of Two Hundred Thousand ( # 200,000) Naira only”.
Regarding the criminal defamation, the wild and unsubstantiated published allegation made by the Epe lawyers that the diligent and forthright prosecutor of the EFCC, Rotimi Oyedepo attempted to smuggle in a blue bag containing foreign currencies into the Epe home of Mr Akinwumi Ambode in order to incriminate him, we are of the view that if the allegation is established to be false and baseless, a charge can be brought in respect of same pursuant to Section 97 of the Criminal Law of Lagos State. We submit that since that allegation, if false, was in fact made, or must be presumed to have been made in order to frustrate a lawful execution of a court-issued search warrant, purposed to identify, recover and remove materials which may be found useful in the course of criminal investigation, and which may be used in evidence in a potential criminal prosecution and adjudication, it was aimed at perverting the course of justice. For the avoidance of any doubt, Section 97 (1&2) provides that “any person who conspires with another to obstruct, prevent, pervert or defeat the course of justice is guilty of a felony and is liable to imprisonment for seven (7) years; and any person who attempts, in any way, not specifically defined in this law to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour and is liable to imprisonment for two (2) years”.
While it is legitimate for Nigerians to insist that our law enforcement agencies in general and the anti-corruption bodies, in particular, must carry out their duties in accordance with the dictates of the law, Nigerians must never confuse such insistence with the undesirable subversion of the work of the anti-corruption agencies, including recklessly and unthinkingly indulging in acts that can put the lives of operatives of the anti-corruption agencies in danger. In the past, EFCC operatives have been killed or attacked in the course of carrying out their duties. In 2010, attempts by the police to arrest the former Governor of Delta State, Chief James Ibori, in his Oghara lair, ended in futility when a fierce gunfight between militants and the police ensued. In August 2017, gunmen invaded the Wuse Zone 7 Abuja Headquarters of the EFCC and unleashed a rain of bullets on the building and operational vehicles parked at the premises, resulting in severe damage to property. Before leaving, the gunmen left a threat note for an operative of the EFCC who then was the head of a section that was investigating many cases involving politically exposed persons. In December 2017, the EFCC alleged that Innocent Chukwuma, of Innoson Motors, hired “six truckloads of thugs” to attack its operatives who were on a mission in Enugu to arrest him. In May 2019, cybercrimes suspects reportedly unleashed dogs on EFCC Operatives in Ibadan. In March 2019, political thugs were reported to have attacked EFCC Operatives in Makurdi, Benue State, and vandalized their bus, for intercepting bags of money allegedly meant for vote-buying in the course of an election.
The act of attacking law enforcement agents and preventing them from discharging their lawful duties should not be tolerated under any guise. It can be recalled how in January 2012, the now-imprisoned mastermind of the 2011 Christmas Day Bombing of St. Theresa Catholic Church in Madalla, near Abuja, Kabiru Abubakar Dikko ( Kabiru Sokoto) was rescued from the police, while in handcuffs, by hundreds of hooligans in the Abaji Area Council of the Federal Capital Territory, Abuja, while he was being taken to his house for a search. Only recently, three policemen and three civilians lost their lives while the Inspector General of Police’s Intelligence Response Team, in a covert anti-kidnapping operation, was moving the arrested kidnap kingpin, Hamisu Wadume, from Ibi to Jalingo in Taraba State. He was in handcuffs and in lawful custody. But a fatal, shameful and tragic interception by some soldiers and civilians led to his release.
The EFCC, composition and operation wise, may not yet be enjoying the ideal operational independence that the Nigerian people desire. Section 2(3) of the EFCC Establishment Act which confers the power of appointment of members of the Commission on the President of Nigeria, subject to Senate confirmation tells us so. And Section 43 of the EFCC Act which empowers the AGF to make rules and regulations with respect to the exercise of any of the duties, functions and powers of the Commission under the Act; and Section 174 of the Constitution of Nigeria, 1999 which authorizes the AGF to institute, take over and continue or discontinue ( by filing nolle prosequi) any public prosecution instituted by any authority or person in Nigeria ( at the Federal level) remind us of this lack of ideal operational independence.
In spite of this statutory and constitutional reality, the duty the Nigerian people owe to the EFCC and owe to themselves is to support the work of the EFCC. That work is undermined when its operatives in search of evidence have to search and shoot their way out of undeserved attack like fishes out of troubled Epe water.